Brunswick business to appeal court decision in favor of town

BRUNSWICK -- After five years of back and forth action between the town of Brunswick and landscaping and mulch manufacturing company SM Gallivan, it seems court litigation will continue for at least a bit longer.

SM Gallivan, under the umbrella of Oakwood Property Management LLC, plans to appeal a recent state supreme court decision that favored the town. A stay has been requested by Oakwood so that operations on 74 acres are not requested to cease and desist, until the appeal process is finalized, since the court found the business was in violation of zoning laws.

"The town wants SM Gallivan to stop all operations," said John Henry, the attorney for Oakwood. His argument has been that the current designation for 43-acres of the property, being Schools and Cemeteries, is unconstitutionally vague. "How can we violate something that does not exist?"

The court, however, said that this would only be unconstitutional if the request were from a school or cemetery, which SM Gallivan does not fall under.

Advertisement

The town plans to oppose the motion for a stay, which will close the site, said town attorney Tom Cioffi.

Neighbors, especially from the North Forty development, have been complaining for years about nauseating odors and noises from trucks starting as early as 6 a.m.

The business has been in operation for a decade, starting with five acres on Oakwood then expanding with 43-acres in a Schools/Cemeteries designated area, and then 26 acres in an agriculturally zoned parcel.

The town notified the business in writing about zoning issues, according to the court document, in 2007 and then again in 2008. In June 2010, a violation was sent discussing "impermissible activities" with another notice of violation sent a year later in 2011.

The 13-page decision by Judge Eugene Devine, dated July 19, states that the business owner Sean Gallivan says he spoke with the town supervisor Phil Herrington who verbally gave his consent and said it would be good to have the land on the tax roll again. Herrington has since said he did not say this. Regardless, the court said Gallivan should have followed up with the proper zoning process as well.

Herrington said in a recent statement:

"We have received a favorable ruling in the case...The court essentially ruled that our Zoning Board of Appeals did not act arbitrarily, capriciously or irrationally when it upheld the notices of violation on the property

"...In the next few days, we will be meeting with our attorneys to discuss the implementation of the court's ruling and how to proceed in the event an appeal of the ruling is filed by Oakwood," he continued in the statement

The court also found that the business on the 26-acre parcel was not agricultural since items manufactured there were not entirely made from material produced on site.

Oakwood also said that the town Zoning Board of Appeals violated open meetings policy but the court said proper time was allowed for public comment.

Back in 2010 at a public hearing, it was stated that the business spent about $3.5 million on payroll for 87 employees at the time. They now have about 123 employees.

At that time in 2010, Herrington was also still deciding if closing the site would be worth it due to the economic impact.

Paperwork for a stay would need to be filed by Aug. 6, officials said.